FRANKFORT — Attorney General Jack Conway wants a federal judge to delay for 90 days the impact of his expected order requiring Kentucky to recognize same-sex marriages performed in other states.
Clay Barkley, a lawyer for Conway’s office, filed a motion requesting the 90-day stay on Thursday in U.S. District Court in Louisville.
“This will give defendants time to determine if they will appeal the order, and the executive branch time to determine what actions must be taken to implement this court’s order if no appeal is taken,” Barkley wrote.
“Should defendants elect to appeal from any final order, they reserve the right to seek a stay for the duration of an appeal,” Barkley wrote.
Judge John G. Heyburn II, whose final order in the case is expected Thursday, said at a Wednesday hearing that he does not plan to issue a stay delaying his order from taking effect, so the state should decide quickly if it wants to appeal. At the time, Barkley told the judge the state planned to decide “very promptly.”
“There could be some confusion” among Kentuckians who quickly seek legal benefits stemming from their same-sex marriages, such as joint tax-filing status, if the state appeals 30 days later and delays the implementation of the order or throws its future into question, Heyburn cautioned on Wednesday.
Heyburn’s preliminary ruling on Feb. 12 struck down portions of a 1998 state law and a 2004 state constitutional amendment defining marriage in Kentucky as between one man and one woman, and prohibiting the recognition of same-sex marriages legally performed in other states.
Allison Martin, a spokeswoman for Conway, said the attorney general and his senior staff discussed the case late Wednesday and concluded it would be prudent to request a delay, during which the state could consider “the legal ramifications” of appealing the final order or letting it go into effect.
Conway and Gov. Steve Beshear, both Democrats, are jointly deciding how the state should proceed, Martin said.
Earlier Thursday, the conservative Family Foundation of Kentucky issued a statement criticizing Conway for not adequately defending the state’s laws against same-sex marriage after the lawsuit was filed last year, leading to Heyburn’s decision.
“This is a betrayal of Kentucky voters,” said Family Foundation policy analyst Martin Cothran. “The only thing missing is the thirty pieces of silver.”

By Lawrence Hurley
WASHINGTON Wed Feb 26, 2014 4:09pm EST
Convicted financier Allen Stanford, who is serving 110 years in prison for his $7 billion Ponzi scheme, arrives at Federal Court in Houston for sentencing June 14, 2012.
Credit: Reuters/RICHARD CARSON
Related Topics
(Reuters) – Investors in Allen Stanford’s $7 billion Ponzi scheme can sue to recoup losses from lawyers, insurance brokers and others who worked with the convicted swindler, the U.S. Supreme Court ruled on Wednesday.
On a 7-2 vote, the court held that lawsuits filed in state courts can go forward. The majority said the ruling would not affect the U.S. Securities and Exchange Commission’s (SEC) ability to enforce securities law as some had feared.
Stanford’s fraud involved the sale of bogus certificates of deposit by his Antigua-based Stanford International Bank. He is serving a 110-year prison sentence.
New York-based law firms Chadbourne & Parke LLP and Proskauer Rose LLP and insurance brokerage Willis Group Holdings Plc were sued by former Stanford investors. The investors also sued financial services firm SEI Investments Co and insurance company Bowen, Miclette & Britt.
“It’s clear the justices understood that ruling for the defendants would create an immunity that Congress never imagined,” said Tom Goldstein, a lawyer representing the former Stanford clients.
Representatives from the two law firms said that when the case returns to the lower court the defendants would move to dismiss the suit on other grounds.
Writing for the majority, Justice Stephen Breyer said the Securities Litigation Uniform Standards Act (SLUSA) did not prevent the state lawsuits from proceeding. The law says that state lawsuits are barred when the alleged misrepresentations are “in connection with” the purchase or sale of a covered security, which is defined as a security listed on a national exchange at the time the alleged unlawful conduct occurred.
As the defendants in the case were not selling securities traded on U.S. exchanges, “it is difficult to see why the federal securities laws would be – or should be – concerned with shielding such entities from lawsuits,” Breyer wrote.
IMPACT ON SEC
The Obama administration, representing the SEC, had sided with the defendants to try to protect the agency’s authority to pursue wide-ranging investigations.
The administration said the “in connection with” language in SLUSA that limits state court lawsuits mirrors language in federal law that gives broad authority of the SEC to pursue such misrepresentations.
Justice Anthony Kennedy wrote in a dissenting opinion that the ruling would have a negative impact on the SEC because it “casts doubt on the applicability of federal securities law to cases of serious securities fraud.” Kennedy was joined in dissent by Justice Samuel Alito.
Securities law experts backed the majority’s view that the ruling was relatively narrow.
Donald Langevoort, a professor of law at Georgetown University, said he was “very surprised” the SEC tried to argue that a ruling in favor of the plaintiffs could diminish the government’s enforcement powers.
“The opinion is imminently correct as a matter of common sense and legal policy,” Langevoort said.
Charles Smith, of the law firm Skadden, Arps, Slate, Meagher & Flom LLP who represents clients before the SEC, said the agency would be comforted by the limited scope of the ruling.
“The decision is crafted in a way that is intended not to interfere with the SEC’s enforcement authority,” he said.
The SEC, via a spokesman, declined to comment.
The defendants had sought Supreme Court review after the New Orleans-based 5th U.S. Circuit Court of Appeals in March 2012 said the lawsuits brought under state laws by the former Stanford clients could go ahead.
The former Stanford clients are keen to pursue state law claims because the Supreme Court previously held that similar “aiding and abetting” claims cannot be made under federal law.
The class-action lawsuits filed by the former investors accused Thomas Sjoblom, a lawyer who worked at both law firms, of obstructing a SEC probe into Stanford, and sought to hold the other defendants responsible as well.
The cases are Chadbourne & Parke LLP v. Troice et al, U.S. Supreme Court. No. 12-79; Willis of Colorado Inc et al v. Troice et al, U.S. Supreme Court, No. 12-86; and Proskauer Rose LLP v. Troice et al, U.S. Supreme Court, No. 12-88.
(Reporting by Lawrence Hurley, additional reporting by Sarah N. Lynch; editing by Howard Goller, G Crosse and Amanda Kwan)

Richard Wolf, USA TODAY 5:11 p.m. EST February 26, 2014
Federal law permits the military to expel previously banned protesters, regardless of their First Amendment rights
Story Highlights
• Protester was banned for vandalism, trespassing
• He claimed free-speech rights in authorized protest zone
• Unanimous court rules military controls the land
WASHINGTON — The Supreme Court on Wednesday unanimously upheld the Pentagon’s right to exclude protesters from military bases, even while allowing easements and exceptions for highways and other civilian uses.
The 9-0 opinion, written by Chief Justice John Roberts, was based on a federal law and not the First Amendment claims of John Dennis Apel, a previously expelled vandal who argued he had a right to demonstrate in an authorized protest zone.
The Obama administration had forcefully defended its right to bar Apel, 63, from Vandenberg Air Force Base following his acts of vandalism and trespassing in 2003 and 2007. The court agreed, noting the military commander retains control of the entire property and can pick and choose any exceptions.
Lawyers for Apel had contended that his presence inside a designated protest area along the scenic Pacific Coast Highway in 2010 posed no threat to the Pentagon.
The case was one of several free-speech cases facing the court this term. Before they adjourn in June, they will rule on at least four others involving political contributions, public prayer and how far protesters can be moved away from abortion clinics and Secret Service protection zones.
The Apel case concerned the military’s power over land it owns but shares peaceably with state and local governments. During oral arguments in December, the conversation focused less on the Constitution and more on green lines and Google Maps.
As for the First Amendment, Justice Antonin Scalia told Apel’s attorney, Erwin Chemerinsky, dean of the University of California-Irvine School of Law: “You can raise it, but we don’t have to listen to it.”
At the center of the case was Apel, who has protested on and off for 17 years against Vandenberg’s use of missiles and space-based weapons. He crossed the line from protester to criminal in 2003 by spilling his blood on the base’s entrance sign.
Apel was convicted of trespassing and vandalism, then convicted again for trespassing in 2007 and ultimately barred from the property under a section of the U.S. Code. Still, he joined three protests in 2010, remaining in the designated protest zone across from Vandenberg’s main gate. Each time, he was arrested and escorted away. For his trouble, he was ordered to pay a total of $355 in fines and fees.
Apel sued and lost twice in lower federal courts before winning a simple, one-page reversal from the 9th Circuit Court of Appeals, which ruled that the government lacked exclusive rights to the protest zone property.
Chemerinsky sought to base the case around Apel’s free-speech rights. “This court has never said there’s a permanent forfeiture of First Amendment rights because somebody misbehaved at one time,” he said during oral arguments.
But the justices were having none of it. Most agreed that the government owns the land and can allow for traffic, protests, schools and anything else without ceding its rights to clamp down when it sees fit.
“They’re entitled to have it both ways,” Scalia said. “It’s their base.”
Justice Anthony Kennedy noted that a utility company has an easement on his property in California, but “they can’t hold a picnic there.”
“It the commander wants to close the base for a rocket launch,” Kennedy said, “he certainly can.”

(Reuters) – In a sign of the growing struggles that judges face applying old laws to new technology, the U.S. Supreme Court this year is hearing the highest proportion of intellectual property cases in its history.

In the court’s nine-month term ending in June, the justices will decide eight cases on intellectual property issues: six on patent law, two of which were argued on Wednesday, and two on copyright law.

That makes 11.4 percent of the 70 oral arguments the court is hearing this term, a marked uptick from six cases, or 7.7 percent, the previous session, according to a Reuters review of the cases.

The court heard three or four cases each of the previous three terms, according to data compiled by Edward Lee, a professor at Illinois Institute of Technology Chicago-Kent College of Law, and the court heard even fewer in the previous decade: two or three per term.

The number of IP cases is the most in a single term since the middle of the last century at a time when the court is hearing fewer cases.

Intellectual property law, which includes patents, copyright and trademarks, has been around for centuries, but in recent decades it has become increasingly important for U.S. businesses, especially in globally competitive areas of the economy such as the technology industry.

The rise in high court cases also has been fueled by differences between rulings by the justices and the findings of a specialized Washington-based appeals court, which handles the nation’s patent cases and has failed to reach consensus on some key issues.

Often filled with jargon and technological terms that can make issues seem obscure, the IP cases can have wide-ranging, real world effects.

This term alone, the court is due to decide the potentially broad question of when software can be patented. In a copyright case, the court will weigh the fate of a startup company that allows people to watch broadcast television on computers and mobile devices.

“This is absolutely a blockbuster year,” said Mark Lemley, a professor at Stanford Law School.

LESS IDEOLOGICALLY SPLIT

Under Chief Justice John Roberts, appointed by President George W. Bush in 2005, the court has increasingly stepped in to confront unprecedented complexities of emerging technology.

The increase in IP cases is evidence also of the Roberts court’s keen interest in business cases. Unlike other business cases on issues ranging from class actions to employment law, however, on these the justices seem less ideologically split.

Of the 23 IP cases decided from 2005 to 2013, a total of 15, 12 of them patent cases, were decided without a single dissenting vote, a Reuters review of the rulings found.

Legal experts are wary of making broad pronouncements about where the court stands on IP issues, saying the court approaches the subject on a case-by-case basis and prefers to rule narrowly.

Last term, for example, the court took the middle ground when faced with the question of whether human genes can be patented. On a unanimous vote, the court prohibited patents for naturally occurring human genes but allowed legal protections for synthetically produced genetic material.

Reflecting the complexity of the issues, Justice Antonin Scalia acknowledged the limits of his scientific knowledge in a separate opinion agreeing with the majority, writing, “I am unable to affirm those details on my own knowledge or even my own belief.”

David Kappos, who headed the U.S. Patent and Trademark Office from 2009 to 2013, said the court was evolving the law to match evolving technology. “They are choosing very wisely, I think, to do it incrementally,” he said.

PATENT PROBLEMS

Legal experts say the high court is taking more intellectual property cases mainly because of widely recognized problems in the patent system that have led to greater litigation in lower courts, especially over increasingly prevalent software patents.

In 2011, almost 125,000 software patents were granted by the U.S. Patent and Trademark Office, up from about 25,000 in 1991, the U.S. Government Accountability Office (GAO) said in an August 2013 report.

Much of the blame for the increase in litigation is assigned to patent-holding companies, derided as “patent trolls”, which often turn to courts for help. Between 2007 and 2011, such companies accounted for an estimated 19 percent of all patent infringement lawsuits, according to the GAO report.

Companies differ over what type of patent protections software products should receive. Some, like Google Inc, favor looser protections, which they see encouraging innovation and discouraging patent trolls. International Business Machines Corp, one of the largest holders of patents, prefers that most software be patent eligible.

The U.S. Congress and the White House have long recognized that further patent reform is needed, even after the America Invents Act, aimed at achieving that goal, was enacted in 2011.

Frequently the focus is on reducing litigation.

In his State of the Union speech on January 28, President Barack Obama made a specific reference to the need for patent reform “that allows our businesses to stay focused on innovation, not costly, needless litigation”.

Patent law insiders say part of the problem is the U.S. Court of Appeals for the Federal Circuit, which was set up in 1982 specifically to handle patent cases but has struggled at times to give clear guidance to lower courts.

Critics say the Federal Circuit’s handling of the software patent case, which is being argued in the high court on March 31, underscores the need for Supreme Court intervention. The appeals court judges split 5-5 with no clear resolution of the case before them and no clear guidance for others involved in similar litigation.

The Supreme Court is generally seen as being less protective of patent rights than the Federal Circuit appeals court. In a 2006 case, for example, the Supreme Court unanimously found that judges should not automatically issue injunctions when they make a finding of patent infringement.

The two most high profile issues before the court this year are the software patent case and the challenge by broadcast TV networks to Aereo Inc, which allows customers to view broadcast network content via the Internet. Several of the patent cases hinge on highly technical issues that are of interest in particular to tech companies. Many, including Apple Inc, Google, Oracle Corp, and Cisco Systems Inc, have filed friend-of-the-court briefs, sometimes in multiple cases.

The two copyright cases – the Aereo dispute and a fight over an early screenplay for the “Raging Bull” movie – are equally important to media companies with large content libraries, such as Twenty-First Century Fox, Inc and Metro-Goldwyn-Mayer Inc, which have taken part in both.

By the end of June the Supreme Court will have ruled on some key questions. At a minimum, Aereo, backed by Barry Diller’s IAC/InterActiveCorp, will know whether it can continue to expand its service across the nation or possibly be forced to abandon its current business plan.

In the software patent case, and the two cases argued on Wednesday, the court could issue rulings on attorneys’ fees which could reduce the amount of litigation over software patents and make it easier for judges to make losing parties pay legal fees.

Lemley, of Stanford, said several of the cases on the docket “could really fundamentally change the practice of law.”

Justices uphold government’s right to freeze assets – Right to an Attorney

Richard Wolf, USA TODAY 1:04 p.m. EST February 25, 2014

Majority on Supreme Court says defendants’ right to attorneys of their choice doesn’t justify adding a new layer of court hearings after the grand jury process.
Frozen assets case

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WASHINGTON — A divided Supreme Court ruled 6-3 Tuesday that the government can freeze assets even if they’re needed by criminal defendants to hire private attorneys.

The case divided conservative and liberal justices. Chief Justice John Roberts wrote a stinging dissent in which he complained about the need for “a check on prosecutorial abuse and government overreaching.”

The case, which was argued during the court’s October sitting, pitted defendants’ property and legal rights against the desire for a streamlined criminal justice system. If defendants contest the freezing of their assets, a pretrial hearing is required at which they can challenge the evidence supporting their indictments.

After more than four months of deliberation, the justices emerged divided over the most contentious issue in the case — the inability of defendants to afford the lawyers of their choice.

When the case was argued, Roberts led the attack against what he called “the overweening power of the government” to tie up defendants’ assets. He was joined by several more liberal colleagues in denouncing the practice. In the end, Justices Stephen Breyer and Sonia Sotomayor joined his dissent.

But a majority of justices were not convinced of the need to create a new layer between grand jury indictments and trials, used in some regions of the country now, because defendants nearly always lose those appeals.

“No one has found a single case in which a judge has actually overturned a grand jury’s decision,” said Justice Elena Kagan in announcing her opinion, which was joined by Justice Ruth Bader Ginsburg and four of the court’s conservative justices.

The defendants “cannot challenge the grand jury’s conclusion that probable cause supports the charges against them,” she wrote. “The grand jury gets the final word.”

The Obama administration had supported that view, arguing that the interim hearings would force the government to try cases twice and risk losing any potential restitution for crime victims on attorneys’ fees.

The case was brought by New York residents Kerri and Brian Kaley, who were charged in 2007 with stealing and reselling used prescription medical devices that had been discarded by hospitals. The government won court approval to freeze the couple’s assets, including their home and a $500,000 certificate of deposit.

The Kaleys’ challenge was based on several factors: that they didn’t steal the medical devices, that their profits were not linked to the seized property, and that they could not hire good lawyers without access to their money. They cited the 5th Amendment’s due process protection against the loss of property and the 6th Amendment’s guarantee of the right to counsel.

Federal appeals courts have split on the subject of such pretrial hearings. Some allow defendants to challenge the evidence that led to the indictment. Others merely examine the link between the seized assets and the criminal charges. Still others do not allow the hearings at all.

Federal forfeitures, meanwhile, have grown from $94 million in 1986, when the Assets Forfeiture Fund was created, to $1.6 billion last year. “Under modern civil forfeiture laws … filling law enforcement’s coffers is often the primary purpose of the seizure,” the conservative Institute for Justice argued in a brief supporting the Kaleys.

Roberts, the lone conservative in dissent, said the decision allows the government “to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice — without even an opportunity to be heard.” He called it “fundamentally at odds with our constitutional tradition and basic notions of fair play.”

Opposing Roberts during most of the hour-long oral argument was Justice Samuel Alito, President George W. Bush’s other nominee, who agrees with the chief justice more often than any of his colleagues. Alito said defense lawyers seek the hearings to learn details of the prosecution’s case before trial; winning exoneration, he said, is “fantasy land for the most part.”

Justices Stephen Breyer and Sonia Sotomayor lined up with Roberts during the argument. “Without a good lawyer, they’re never going to make their case,” Breyer said of the defendants. And even if their chance of getting an indictment tossed out at a hearing was “one in a million,” Sotomayor said, it “might be your case.”

The U.S. Supreme Court on Tuesday rejected a Miami attorney’s constitutional challenge to the government’s practice of seizing a defendant’s assets before trial, especially common in white-collar fraud cases.

The high court’s 6-3 decision would have had widespread implications — including testing the very basis of a federal grand jury indictment that allows such seizures — if it had gone the other way.

Associate Justice Elena Kagan, who wrote the majority opinion, ruled that the Supreme Court had already “cast the die” on Miami criminal defense attorney Howard Srebnick’s appeal when it previously rejected a similar challenge to U.S. forfeiture law. Kagan said allowing Srebnick’s clients to “relitigate” a grand jury’s probable cause finding to challenge the government’s pre-trial seizure of their property would lead to “destructive consequences.”

But Chief Justice John Roberts sided with Srebnick’s argument, calling the majority’s decision “fundamentally at odds with our constitutional tradition and basic notion of fair play.”

Srebnick is representing a New York couple indicted in 2007 on charges of illegally profiting from the resale of older medical devices in South Florida’s “gray market.”

He expressed disappointment in the high court’s ruling: “I don’t know how I will explain to my students at the University of Miami Law School that the Supreme Court ruled that an innocent client cannot use her own money to hire an attorney to defend her in court.”

Srebnick argued that the seizure of the couple’s assets violated the constitutional protections of due process and right to counsel. With their assets frozen until a trial’s outcome, Kerri and Brian Kaley were effectively being stripped of the ability to hire the defense lawyer of their choice, he argued before the Supreme Court in October.

Srebnick, who worked on the appeal with Miami attorney Richard Strafer, argued that defendants should be allowed to keep their bank accounts and other worldly possessions unless prosecutors can show before trial that the evidence supporting an indictment justifies the seizure of those assets.

For decades, prosecutors have only needed to point to a federal grand jury indictment to argue that defendants’ assets are traceable to the criminal allegations and therefore can be seized. And judges have almost always ruled in the prosecution’s favor because of the presumption that the grand jury found “probable cause” that a crime was committed.

Eventually, depending on whether a defendant is found guilty or innocent, frozen assets are either kept or returned by the government.

Srebnick asked the Supreme Court to allow a hearing that would test the strength of the prosecution’s evidence before an actual jury hears the government’s case against his two clients, the Kaleys.

The New York couple obtained a $500,000 equity line of credit on their home so they could pay projected legal fees to their “preferred” defense lawyers, Srebnick, and colleague, Susan Van Dusen, who claimed the government’s case was “baseless.” But after the couple’s indictment, prosecutors obtained a judge’s order to seize their home and other assets valued at nearly $2.2 million, leading to the Supreme Court case.

There have been other recent, high-profile asset grabs as well: The U.S. attorney’s office seized millions of dollars of bank deposits, waterfront property and jewelry that once belonged to notorious Fort Lauderdale Ponzi schemer Scott Rothstein, who was charged in late 2009 and eventually sentenced to 50 years in prison.

Chief Justice MintonFRANKFORT, Ky. Feb. 24, 2014 – Chief Justice of Kentucky John D. Minton Jr. will discuss the Judicial Branch budget before the Senate Appropriations & Revenue Committee on Tuesday, Feb. 25, in Frankfort. The meeting is open to the public and will take place at 9 a.m. EST in the Capitol Annex.

The Judicial Branch budget bill covers funding for Fiscal Years 2014-2016 and has been filed as House Bill 238.

On Tuesday, Chief Justice Minton will outline his priorities for the biennial budget, including a complete overhaul of the Judicial Branch’s broken salary structure. Salaries for court system personnel have fallen behind those in the private sector and the other branches of state government. In addition, one-quarter of Judicial Branch employees fall under the federal poverty guidelines for a family of four and an even larger number qualify for food stamps.

Chief Justice Minton will also address his other priorities, which call for maintaining the Judicial Branch’s base budget at current levels with no reductions, funding the required cost of employee benefits and reinvesting savings from House Bill 463 into the Judicial Branch.

The chief justice is the administrative head of the state court system and is responsible for overseeing its operation. Chief Justice Minton was elected to the Supreme Court in 2006. His fellow justices elected him to serve a four-year term as chief justice in 2008 and re-elected him for a second term in 2012.

Retired Judge Steve D. Hurt has filed a law suit in the Franklin Circuit Court seeking, “Declaratory Judgment and Injunctive Relief”. The purpose of the suit is to obtain a holding that the newly enacted statute, (KRS 118.105 …adopted in June 25, 2013) is unconstitutional since it prevents a retired judge, “…who retired as a Senior Status Special Judge” from “shall not become a candidate for any elected office during the five year term prescribed in KRS 21.580(1)(a)1 (Senior Status Program for Special Judges).
The argument presented to the Franklin Circuit Court states that Judge Hurt retired from the Senior Status Judge program after serving the mandatory 600 days on December 18, 2013.
The new statute (KRS 118.105) was adopted on June 26, 2013. Hurt’s attorney James L. Deckard of Hurt, Crosbie & May of Lexington, Ky. argues that this statute violates the constitutional provisions for the eligibility to being a candidate for a judicial office.

He argues that the application of the statute “would act to impair, thwart, obstruct or defeat …(Hurt) in his rights” under Section 116 of the Kentucky Constitution.
Hurt is a well known judge and is popular in the judicial district with former Senator David Williams.

LawReader has received several reports, even from former political enemies of David Williams, which opine that Williams has served well as Circuit Judge.

The statute is thought to have been adopted due to an attempt to prevent double dipping since the judge who retired, and then ran for another office would be able to continue to draw his retirement benefits, and also to draw a salary for whatever office he was elected to during his retirement.

City of Bowling Green v. Helbig (Ky. App., 2012) 2011-CA-001660-MR September 28, 2012
The City is correct in arguing that KRS 337.285(1) prohibits employers from employing any employee for a work week longer than forty (40) hours unless the employee is compensated at an overtime rate. And it concedes that the provisions of KRS 337.285 allow employers to determine whether vacation and leave time may count toward an employee’s total number of hours worked for purposes of computing overtime compensation.

No process of strained statutory construction is necessary on our part in light of the plain language of both statutes and the ordinance before us. In Demko v. United States, 216 F.3d 1049, 1053 (Fed.Cir. 2000), a federal court articulated a metaphor that is particularly appropriate for this case: “When a statute is as clear as a glass slipper and fits without strain, courts should not approve an interpretation that requires a shoehorn.”

Therefore, we vacate the order of the circuit court and remand for entry of an appropriate order consistent with this opinion.

LOUISVILLE, Ky. — Kentucky’s efforts to seize 132 Internet gambling domain names is on hold after an appeals court ruled Friday that a trade association may represent the owners of the sites trying to fend off forfeiture proceedings.

The decision by the Kentucky Court of Appeals allows the Interactive Gaming Council to step into the 6-year-old case and, at least temporarily, keep the identities of the owners of various Internet gambling sites from being publicly revealed.

Judge Allison Jones, writing for a unanimous three-judge panel, noted that Kentucky has treated the domain names as a group for much of the litigation but wants to handle them individually now to prevent the trade association from becoming involved.

“The Commonwealth cannot now turn the tables and ask the court to require each domain name owner to come forward individually and assert virtually identical legal arguments through separate counsel to resolve threshold, purely legal issues that affect the validity of the entire forfeiture procedure,” Jones wrote.

The appeals court sent the case back to Franklin Circuit Court Judge Thomas D. Wingate for further hearings.

“Obviously, we consider this a win,” said Interactive Gaming Council CEO Keith Furlong. “We are also proud to be a catalyst for this decision which provides guidance to all associations seeking to represent their members in the Commonwealth of Kentucky.”

Jennifer Brislin, a spokeswoman for the Kentucky Justice Cabinet, said the opinion is being reviewed and there’s been no decision about whether to file an appeal.

“Also, as a result of the Commonwealth actions, most of the websites that are the subject of the in rem domain name case have stopped doing business in Kentucky,” Brislin said.

The ruling comes in the between Kentucky and gambling website owners. The state sought to seize the domain names, saying they were allowing illegal gambling in Kentucky. IGC sought to fight the seizure on behalf of the domain name owners.

In August 2008, Kentucky launched a sting to see whether offshore gambling sites would allow Kentucky residents to conduct transactions. The 141 sites were found to be in violation of the Kentucky statutes. However, FullTiltPoker.com, PokerStars.com, AbsolutePoker.com, UltimateBet.com, DoylesRoom.com, TruePoker.com, Bookmaker.com and Bodog.com have been seized by the federal government and were removed from Kentucky’s list, which dropped to 132 sites. A ninth domain was shut down in a related action.

The state initiated a lawsuit in an effort to stop illegal online gambling. Kentucky was the first state to bring an action against Internet gambling operators resulting in the seizure of domain names. Among other things, the state said online gambling drains the state of money by undermining horse racing, a key tourism industry.

Wingate ruled that IGC showed enough to represent one of its members, Pocket Kings Ltd., but not enough information to establish itself as a representative of all the domain names in question. That ruling could have forced owners of the sites to be publicly identified.

Kentucky officials argued that each domain name owner had to come forward and prove that each site did not engage in illegal gambling in Kentucky or that the site was being used to do so without the knowledge and consent of the owner.

If IGC carries the day, those owners will not have to come forward and the association can represent them.

Frankfort, Ky. – A panel discussion addressing participation by Kentucky African Americans in the political process will take place in conjunction with the upcoming 50th anniversary commemoration of the civil rights march on Frankfort. The event is being hosted by the Kentucky African American Heritage Commission (KAAHC) in partnership with the Kentucky Heritage Council/State Historic Preservation Office, the Kentucky Historical Society (KHS) and the Kentucky Commission on Human Rights.

Justice William E. McAnulty Jr.“The William McAnulty Forum on African Americans and the Future of Kentucky Politics” will take place at 2 p.m. Wednesday, March 5, in the Brown-Forman Room at the Thomas D. Clark Center for Kentucky History in downtown Frankfort. The event honors the late Justice William E. McAnulty Jr., the first African American to serve on the Kentucky Supreme Court. The forum is free.

Panelists will be Bardstown Mayor Bill Sheckles, Perryville Mayor Anne Sleet, Lexington-Fayette Urban County Councilman Chris Ford, and Owensboro City Commissioner Pamela Smith-Wright, in addition to several guest panelists. The moderator will be Renee Shaw, producer and host of KET’s minority affairs program “Connections with Renee Shaw” and first vice president of the KHS governing board.

The forum will explore past and present political participation by African Americans as candidates, party leaders and voters, and also examine opportunities awaiting African Americans in future state and local elections, according to Dr. Gerald Smith, KAAHC chair, associate professor of history/Martin Luther King Jr. Scholar-in-Residence at the University of Kentucky and member of the KHS governing board.

“Kentucky African Americans have a long and distinguished history in state and local politics, and the McAnulty Forum will address that as well as the current political landscape within the Bluegrass State,” said Smith. “Through this discussion, we want to explore how racially diverse Kentucky politics really are 50 years after the march on Frankfort, as well as what we have learned, and where we need to go in terms of engaging more African Americans to vote and run for political office.”

Panelists will be asked to share their political experiences and address the following questions, among others:

What challenges have African Americans faced in seeking an elected office?
Do African Americans still feel they are on the margins of Kentucky politics?
What strategies can be employed to encourage and expand political participation?
How do we inspire the next generation to pursue political opportunities?

Calling for passage of a statewide public accommodations measure, some 10,000 demonstrators – including Dr. Martin Luther King Jr. and Jackie Robinson – marched to the Kentucky Capitol on March 5, 1964, and helped advance the cause of civil rights in the state. The 2014 commemorative march is organized by Allied Organizations for Civil Rights, which includes the KAAHC.

McAnulty earned his law degree from the University of Louisville and served as a juvenile court judge, district judge and circuit court judge in Jefferson County prior to going into private practice. He was re-elected to the circuit court as chief judge in 1993, then appointed to the Kentucky Court of Appeals in 1998. He was appointed to the Kentucky Supreme Court in 2006 by then-Governor Ernie Fletcher, and later that year was elected to a full eight-year term. He died in August 2007 of complications from lung cancer. A bust of McAnulty by noted sculptor Ed Hamilton was unveiled at the State Capitol in 2010.

For more information about the forum, contact Tressa Brown, Kentucky Heritage Council African American heritage coordinator, at 502-564-7005, ext. 125 or tressa.brown@ky.gov.

The North Carolina State Bar filed charges on Valentine’s Day alleging that an attorney who was admitted in 2009 and practiced domestic relations law engaged in improper sexual behavior towards three clients.

The allegations include charges that the attorney texted pictures of himself in the full-length nude and of his erect penis. He also is alleged to have kissed and touched clients in a sexual manner.

He allegedly told one client that he had had a vasectomy and could thus “ride bareback.”

Finally, it is alleged that he “wrote off” $3000 in feesto a client who was the subject of his attentions without advising his firm and lied to the State Bar in response to complaints against him. (Mike Frisch)

By Robert Barnes The Washington Post Feb. 16, 2014
WASHINGTON — Supreme Court justices found themselves a bit spatially challenged last month, when they heard oral arguments about a Massachusetts law that keeps people 35 feet from the entrance of an abortion clinic.
From here to the back of the courtroom, Justice Elena Kagan asserted. No, more like two car lengths, offered Justice Sonia Sotomayor. Far enough that one would have to shout to be heard by someone entering, Justice Antonin Scalia said.
But there is no mystery about how far a demonstrator may advance when trying to make a point at the Supreme Court.
It is beyond the justices’ grand courtroom, past the Great Hall, down the court’s iconic front steps, across the 252-feet by 98-feet oval marble plaza, and down eight more steps to the sidewalk along First Street.
In other words, the whole city block on which the Supreme Court sits is off-limits to protesters, save for the sidewalks that ring it. It has been that way, more or less, since 1949, when Congress decreed:
“It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”
But the restrictions on protests at the Supreme Court are under legal attack all over the city, following a decision last June by a federal judge that the 1949 statute went too far.
“It cannot possibly be consistent with the First Amendment for the government to so broadly prohibit expression in virtually any form in front of a courthouse, even the Supreme Court,” U.S. District Judge Beryl Howell wrote in a 68-page opinion.
Washington attorney Jeffrey Light has challenged the restrictions on behalf of Occupy D.C. protesters who were arrested at the Supreme Court and has brought a lawsuit against the regulation prohibiting protests that Chief Justice John Roberts approved after Howell’s decision.
But Light, who is affiliated with The Rutherford Institute, said that those are on hold while the government appeals Howell’s ruling to the U.S. Court of Appeals for the D.C. Circuit. Howell threw out the conviction of Harold Hodge of southern Maryland, who was arrested in January 2011 for standing on the plaza wearing a 3-by-2 foot sign that said, “The U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans And Hispanic People.”
The government’s appeal, filed on behalf of Supreme Court Marshal Pamela Talkin and D.C. U.S. Attorney Ronald Machen, argues that it is logical to prohibit demonstrations at the Supreme Court in a way that might violate the First Amendment when applied to other government buildings.
“It is well established that the government has a legitimate interest in limiting picketing or demonstrating near courthouses,” Assistant Attorney General Stuart Delery writes.
The Supreme Court noted such arguments in 1983, in deciding a case brought by a protester named Mary Grace. She was arrested in 1980 on the sidewalk in front of the court for carrying a sign that reprinted the words of the First Amendment.
The justices ruled for Grace, saying that protesters could not be banned from a traditional public forum such as a sidewalk, even if it was in front of the Supreme Court.
But they did not address the subject of protesters on the court’s grounds.

FRANKFORT, Ky. — The public is invited to a dedication ceremony for the new Franklin County Court House on Tuesday, Feb. 18, at 4 p.m. EST at 222 Clair St. in Frankfort.

“Since the early days of the commonwealth, Kentucky courthouses have held a special place as the center of our communities,” Chief Justice of Kentucky John D. Minton Jr. said. “The Franklin County Court House will provide an efficient facility where citizens can carry out court business and seek access to justice. I appreciate the county leaders and state legislators who joined the Judicial Branch in making this project a reality.”

The judicial center consists of 98,400 square feet and includes space for Circuit Court, District Court, the Office of Circuit Court Clerk and ancillary services. The Kentucky General Assembly authorized the Franklin County Court House project in 2006 and approved its funding in 2008. The total cost of the project was $29 million.

The new facility is designed to greatly enhance the delivery of court services. It is equipped with the latest computer, video and networking technology. The judicial center also provides the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel. In addition, prisoners will be segregated from the public by separate entrances and corridors.

The Franklin County Court House was designed to meet the standards required by the Administrative Office of the Courts. Architect Rick Kremer FAIA of Louisville designed the facility and Codell Construction Co. of Winchester was the construction manager for the project. Ross, Sinclaire & Associates LLC, which serves Kentucky and nine other states, is the financial agent.

Chief Justice Minton and Franklin County Judge-Executive Ted Collins will be among the speakers at the dedication ceremony. State legislators, circuit and district judges, the Franklin County circuit court clerk, county magistrates, other local officials and AOC staff are also expected to attend. For more information, contact Judge-Executive Collins at 502-875-8751.

The AOC oversees the construction and maintenance of court facilities statewide as the administrative and fiscal agent for the state court system. The AOC also supports the activities of nearly 3,300 Kentucky Court of Justice employees and 403 elected justices, judges and circuit court clerks.

At issue is a 2004 incident that began with a traffic stop for a busted headlight and ended some 10 minutes later with multiple police officers firing a total of 15 rounds into the fleeing vehicle, killing the driver, Donald Rickard, and his passenger, a woman named Kelly Allen, both of whom were unarmed.
In response to a lawsuit filed by Rickard’s family, the officers involved in the shooting invoked the doctrine of “qualified immunity,” a legal defense which, in the words of a 1982 Supreme Court opinion, protects “government officials…from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

But that defense failed to persuade the U.S. District Court for the Western District of Tennessee, which ruled against the West Memphis, Arkansas officers who shot and killed Rickard and his companion. According to the district court, “the facts here do not support a finding that a reasonable officer would have considered the fleeing suspects a clear risk to others.” Indeed, that court declared, “[t]he only objectively reasonable threat that Rickard posed was the threat that the officers also posed by participating in the pursuit.” The officers appealed that loss, but the U.S. Court of Appeals for the 6th Circuit affirmed the district court’s denial of qualified immunity, declaring it “cannot conclude that the officers’ conduct was reasonable as a matter of law.”
Which brings us back to the U.S. Supreme Court, which will now consider whether the 6th Circuit got it right, or whether the police officers are entitled to qualified immunity for their decision to use deadly force against Rickard and Allen.
Although the Rickard family has repeatedly prevailed in the lower courts, they face a far steeper challenge at the Supreme Court. That’s because in the 2007 case of Scott v. Harris, the Court ruled eight-to-one in favor of a Georgia deputy sheriff who rammed his cruiser into the vehicle of a fleeing suspect in order to bring a high-speed chase to an end, causing a crash that left the suspect paralyzed. “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment,” declared the majority opinion of Justice Antonin Scalia, “even when it places the fleeing motorist at risk of serious injury or death.” Of the eight justices who voted for that outcome, seven of them—Scalia, Roberts, Kennedy, Thomas, Ginsburg, Breyer, and Alito—remain on the bench.
Unsurprisingly, Officer Vance Plumhoff and his colleagues in the West Memphis police force have cited that precedent in support of their own actions. Moreover, the officers are urging the Supreme Court to take the opportunity presented by this case to send a clear signal discouraging future lawbreakers from attempting their own motorized flights from justice. As the officers’ main brief puts it, “[t]he only recourse some officers have in some situations: shooting to disable the threat.”
For its part, the Obama administration has sided with the police, filing a brief that asks the Supreme Court to reject the 6th Circuit’s judgment and grant qualified immunity. “A reasonable officer reviewing [Scott v. Harris] could conclude that she was not clearly required by the Constitution to give up the chase rather than use deadly force,” the administration argues.
Bottom line? Critics of aggressive police tactics are unlikely to find themselves celebrating the eventual ruling. Judging by the Court’s precedent and its current disposition, this case appears to be a winner for law enforcement.

LOUISVILLE, Ky. (AP) — A federal judge has ruled that Kentucky must recognize same-sex marriages performed in other states, striking down part of the state ban.

In 23-page a ruling issued Wednesday, U.S. District Judge John G. Heyburn II concluded that Kentucky’s laws treat gay and lesbians differently in a “way that demeans them.” The constitutional ban on same-sex marriage was approved by voters in 2004. The out-of-state clause was part of it.

The decision came in lawsuits brought by four gay and lesbian couples seeking to force the state to recognize their out-of-state marriages.

Heyburn did not rule on whether the state could be forced to perform same-sex marriages.

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Our post last week discussed whether heightened federal pleading standards for stating a claim for relief apply in Kentucky state courts. Today’s post deals with the issue whether those standards apply to affirmative defenses in federal court.
There is a split among the federal district courts as to whether the plausibility standard established by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), applies to affirmative defenses. To date, the Supreme Court has not decided the issue, nor has any of the federal circuit courts.
It appears that a minority of federal district courts have applied the heightened pleading standard of Twombly and Iqbal to affirmative defenses based mainly on a “goose-gander” approach, reasoning that if plaintiffs must follow the plausibility standard, then defendants should as well. See, e.g., Racick v. Dominion Law Associates, 270 F.R.D. 228 (E.D. N.C. 2010). However, a majority of district courts that have decided the issue have determined that the plausibility standard does not apply to affirmative defenses because of the clear difference in the language used in Rule 8(a) governing claims for relief as compared to Rule 8(b) and 8(c) governing defenses. See, e.g., U.S. Commodity Futures Trading Com’n v. U.S. Bank, N.A., 2014 WL 294219 (N.D. Iowa 2014).
Rule 8(a)(2), which was at issue in the Twombly and Iqbal decisions, requires that “claims for relief” contain a “short and plain statement of the claim showing that the pleader is entitled to relief” (emphasis added). On the other hand, Rule 8(b)(1)(A), which governs defenses, requires only that the defendant “state in short and plain terms its defenses to each claim asserted against it.” Rule 8(c), which covers affirmative defenses, does not require the defendant to make any “showing” that it is “entitled” to plead any affirmative defense that it asserts. See Odyssey Imaging, LLC v. Cardiology Assocs. of Johnston, LLC, 752 F. Supp. 2d 721, 725–26 (W.D. Va. 2010).
As recently as January 30, 2014, a federal district court in California found in an unpublished decision that there was no “binding authority holding that the Twombly/Iqbal standard applies to affirmative defenses.” In the absence of such authority “expanding the scope of Twombly/Iqbal,” the court found “the traditional standard of fair notice to the plaintiff is still applicable to the pleading of affirmative defenses,” and thus decided to determine the sufficiency of the defendant’s plea of an affirmative defense by “analyzing whether it gives Plaintiff fair notice of the defense.” Vogel v. OM ABS, Inc., 2014 WL 340662 (C.D.Cal. 2014).
The majority of courts in declining to apply the heightened standard to pleading defenses generally note for a variety of reasons that it is unfair to hold defendants to the same heightened standard as plaintiffs. They often note that the plaintiffs usually control when civil proceedings are initiated, and that, whereas plaintiffs may have months to research and refine their claims in their complaints, defendants usually have only 21 days under the Federal Rules to formulate their affirmative defenses. Furthermore, if a new claim becomes evident during discovery, plaintiffs may usually take advantage of liberal rules governing amendment of pleadings and amend the complaint to add the claim, but some affirmative defenses could be waived even if the defendants did not have evidence to support the defenses until the discovery process. Thus, defendants routinely plead a multitude of affirmative defenses out of an abundance of caution in the event that a basis for the defense appears during discovery. Such defenses are sometimes formally withdrawn but are more commonly reserved or simply ignored when the case proceeds. For these reasons, most courts decline to apply the plausibility standard of Twombly and Iqbal to affirmative defenses.
Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

COMBS, JUDGE: Deana Fuller, as Administratrix of the Estate of Derrick Fuller, individually, and as mother and next friend of her four minor children, appeals the order of the Jefferson Circuit Court which dismissed her claims against Enterprise Rent-a-Car Company of Kentucky, LLC. After our review, we affirm.

On February 28, 2010, Derrick Fuller, a pedestrian, was struck and killed by an automobile driven by James Kelly. Deanna Fuller alleges that Kelly had fallen asleep at the wheel. It is undisputed that Kelly had rented the car from Enterprise. In his rental contract, Kelly declined to purchase Enterprise’s tort liability insurance and instead elected to be covered by his personal insurance policy.

Fuller filed her complaint in Jefferson Circuit Court on November 22, 2010, naming both Kelly and Enterprise as defendants. On December 15, 2010, Enterprise filed a motion to dismiss based on failure to state a claim. At some point during the pendency of the motions, Enterprise paid basic reparation benefits (BRB’s) to Fuller. However, the claims for tort liability remained the subject of litigation.

The sole issue in the case before us is tort liability insurance rather than excess coverage. Shelter recognized that insurance coverage is subject to modification by contractual agreements as long as it comports with the statutory scheme of the Motor Vehicle Reparation Act (MVRA). Shelter, supra. The MVRA at Kentucky Revised Statute[s] (KRS) 304.39-110 mandates that insurance be carried for tort liabilities. It allows “the requirement of security for payment of tort liabilities [to] be met by a contract.” KRS 309.39-110(2). This language is known as an “escape clause.” Rees v. U.S. Fidelity and Guar. Co., 715 S.W.2d 904, 906 (Ky. 1986). In Rees, the court held that the escape clause permits contractual shifting of tort liability – but not of BRB’s. Id.

Fuller further argues that the Kentucky Administrative Regulations (KAR) dictate that Enterprise, as a self-insured entity, is solely responsible for tort liability insurance. 806 KAR 39:050(2) provides that applicants for self-insurance must agree “to pay all tort liability and basic reparation benefits incurred and required by KRS Chapter 304, Subtitle 39[.]” As we pointed out, KRS 304.39-110 permits contractual shifting of tort liability, as acknowledged by our Supreme Court in Rees. KRS 304.39-080 requires self-insured entities to pay “tort liabilities or basic reparation benefits, or both.” By employing the disjunctive or, KRS 304.39-080 allows for contractual flexibility while still complying with the mandate of KRS 304.39-110 that coverage for BRB’s cannot be shifted or avoided.

As the trial court noted, Congress in 2005 enacted a law (the Graves Amendment) which exempts car rental companies from tort liability. 49 U.S.C.A. § 30106(a)(1). However, Fuller argues that the Graves Amendment is inapplicable because it provides that it does not supersede any state laws that deal with financial responsibility or liability insurance requirements of the law. 49 U.S.C.A. § 30106(b). While this may be a valid analysis, it does not apply to the particular facts of this case and is not pertinent to our resolution of the matter. Kentucky’s statutory scheme does not mandate that car rental companies be solely responsible for tort liability insurance and allows for contractual shifting of liability for them to create their own exemption. Essentially, the Graves Amendment was a federal codification of the already existing Kentucky law on this issue.

KRS Chapter 304, Subtitle 39[.]” As we pointed out, KRS 304.39-110 permits contractual shifting of tort liability, as acknowledged by our Supreme Court in Rees. KRS 304.39-080 requires self-insured entities to pay “tort liabilities or basic reparation benefits, or both[.]” By employing the disjunctive or, KRS 304.39-080 allows for contractual flexibility while still complying with the mandate of KRS 304.39-110 that coverage for BRB’s cannot be shifted or avoided.

Gary J. Sergent of Covington, and John F. Vincent of Ashland have been elected to serve as Bar Governors for the 6th and 7th Supreme Court Districts (SCD), respectively, following a recent tabulation of votes certified by a canvassing board at the Supreme Court of Kentucky in Frankfort. A swearing-in ceremony will be held during the Annual Banquet scheduled in conjunction with the KBA’s Annual Convention on Thursday, June 19, at the Cincinnati Marriott RiverCenter in Covington. The following officers and bar governors will take office effective July 1; the officers will serve a one-year term ending June 30, 2015. The bar governors listed below will serve a two-year term ending on June 30, 2016:

Posted on February 6, 2014 by Michael Stevens •
FRANKFORT, Ky., Feb. 5, 2014 – Beginning Jan. 1, 2014, state law requires every petition for expungement in Kentucky to include a certificate of eligibility for expungement. Under KRS 431.079, individuals who wish to have their criminal records expunged must complete the expungement certification process to determine if they are eligible for expungement. The certification provides judges and prosecutors with the most current and complete information available on a individual’s record.
KRS 431.079 is the enactment of Senate Bill 78, which was passed during the regular session of the 2013 General Assembly.
The Kentucky State Police are overseeing this process in conjunction with the Administrative Office of the Courts. Under the new law, both agencies must run criminal record reports on the person petitioning for the expungement. The KSP will then certify the eligibility of the expungement request.
Individuals can request certification through the AOC by registering online, by U.S. mail or in-person at the AOC Records Unit drive-thru window at 1001 Vandalay Drive in Frankfort. The certification costs $40 and the process takes up to 60 days. Those who obtain an expungement certification may then file a petition for expungement with the Office of Circuit Court Clerk in the county where the original charge was filed. The petition must be filed before the certification expires in 30 days.
Under the new process, judges will receive an expungement certification packet along with each petition for expungement. The certification ensures that judges can take into account an individual’s most up-to-date and comprehensive record information when determining whether to grant an expungement.
Individuals can visit the Kentucky Court of Justice website at http://courts.ky.gov/expungement to learn more about the expungement certification process. The site provides a list of frequently asked questions and describes the steps to submit a request online, in-person or by U.S. mail. The benefits for those applying electronically include email notifications throughout the process, the ability to check on the status of the certification online and the ability to download the certification packet as soon as it becomes available.